Broker calls court injunction against random drug and alcohol testing “scary”

Alberta’s appeal court has upheld a lower court ruling that prohibits Suncor Energy Inc. from testing oil sands workers in safety sensitive positions for drug and alcohol impairment.

For Sherry Barge, national transportation leader for commercial brokerage BFL Canada, the court injunction against Suncor is “scary” because workers impaired by drugs or alcohol could cause accidents, she told Canadian Underwriter.

In an injunction released Dec. 7, 2017, the Alberta Court of Queen’s Bench prohibited Suncor from conducting random drug and alcohol testing. The injunction, cited as Unifor, Local 707A v Suncor Energy Inc., was upheld by the Alberta Court of Appeal on Feb. 28, 2018.

Injunctions against employers who subject unionized workers in safety-sensitive positions to random testing are “fairly common,” employment lawyer Brian Thiessen told Canadian Underwriter. Thiessen, a partner with Osler, Hoskin and Harcourt, was commenting in general and not on the Suncor ruling.

Suncor’s work sites are near Fort McMurray. They involve heavy haul trucks weighing more than 400 tons, including cable and hydraulic shovels 21 metres in height, according to court documents.

Unifor, formed through the merger of the Canadian Auto Workers and the Communications Energy and Paperworkers unions, argues that random drug and alcohol testing harms unionized workers’ privacy.

Unifor argued that “it is particularly egregious” for Suncor to use random testing “to identify what it views as potential safety risks,” Alberta Court of Appeal Justice Frans Slatter wrote in his dissenting reasons on Feb. 28, 2018 . But, unlike the majority, Justice Slatter would have let Suncor carry on with random drug and alcohol testing.

“Safety is proactive rather than reactive,” Justice Slatter wrote. “What other type of safety risks, other than ‘potential’ safety risks, is a workplace safety program aimed at? Hard hats, steel toed boots, safety railings, fire extinguishers, and most other safety equipment is aimed at potential safety risks; it is not considered acceptable to simply wait for something unsafe to happen and then to clean up the mess.”

The union argued that 98% of the drug and alcohol tests performed at Suncor’s work sites are negative.

“This is an encouraging statistic, but barely relevant,” Justice Slatter wrote. “It is like pointing out that 98% of workers who wear hard hats never have anything fall on their heads, and then arguing that the wearing of hard hats should be optional.”

Whether or not Suncor can ultimately conduct random drug and alcohol testing is still before a provincial arbitrator. Unifor asked for the injunction, which could be lifted if an arbitrator rules in favour of Suncor. In 2014, a provincial labour arbitration board did rule that random testing violated workers’ privacy rights. Suncor asked for judicial review. In 2016, a judge with the Court of Queen’s Bench remitted the issue back to arbitration before a fresh panel. That ruling was upheld in a decision released in September 2017, by the Alberta Court of Appeal.